ANDM.P. NOS. 1 & 2 OF 2007 The Tamilnadu Forest Staff Association v. 1. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 09.11.2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE M.DURAISWAMYW.P. NO. 36235 OF 2007ANDM.P. NOS. 1 & 2 OF 2007The Tamilnadu Forest Staff Association,rep. by its General SecretaryMr.Nazir, 6 Shaj Liberty Garden, TVS Nagar, Edayar Palayam Post,Coimbatore 25. (Head Officeunder article 4 of the bye laws).. Petitioner- Vs -1. The State of Tamil Nadu, rep. by Secretary to Government Environment and Forest Department Fort St. George, Chennai 9.2. The Principal Chief Conservator of Forest Panagal Maligai, Saidapet Chennai 600 015. .. RespondentsWrit petition filed under Article 226 of the Constitution ofIndia for the issue of writ of certiorarified mandamus to call forthe records of the first respondent issued in G.O. Ms. No.239Environment and Forest (FR-X) department dated 12.08.1998 and quashthe same and to consequently direct the respondents to take allpositive steps and emergent steps for proper implementation of theorders of apex Court in letter and spirit and the Acts and Rules in aproper perspective. For Petitioner: Ms.Selvi GeorgeFor Respondents : Mr.S.N.Kirubanandam, Spl. G.P. (Forests) https://hcservices.ecourts.gov.in/hcservices/ ORDER(ORDER OF THE COURT WAS MADE BY S.J.MUKHOPADHAYA, J.)By amended rule in G.O. Ms. No.239 dated 12th Aug., 1998 issuedfrom Environment and Forest Department of the State, followingsubstitution has been made in sub clause (b) of sub-rule (3) of Rule1 of the Tamil Nadu Timber Transit Rules, 1968 (hereinafter referredto as 'Transit Rules, 1968') :-(a) timber not grown in India;(b)timber cut up or fashioned otherwise than is usually doneor permitted to be done before removal from the forest inwhich it has been felled.The aforesaid amended rule is under challenge on the ground thatit will go against public interest.2. The petitioner association, which claims to be working in theinterest of environment and forest has challenged the amended rule onthe following grounds:-i) There is absolutely no need to exempt any timber from thepurview of Transit Rules, 1968;ii) Timber being protected forest wealth, impugned amendmentwill cause destruction of timber on the ground of exemption; andiii) The officers will have no supervisory control over themovement of timber at large.3. Learned counsel for the petitioner submitted that TransitRules, 1968 was framed in exercise of powers conferred u/s 35 and 36of the Tamil Nadu Forest Act, 1882 (hereinafter referred to as the'Act') with an intention to regulate the transit of timber in TamilNadu. The rule is not a prohibitory rule, but is regulatory innature. Under Rule 2, no person shall move timber in or from orwithin the State by land, water or air, unless such timber isaccompanied by a permit prescribed under Rule 4. Under Rule 3, incase of timber from Government land, a permit is required under Form-I and a fee calculated to be paid as fixed per lorry load.Similarly, in case of timber from private forest land, markets ofdepots in the District, a permit is to be taken in Form-II. If theamendment is allowed, then in the name of “timber not grown in India”and “all timber cut up or fashioned otherwise than is usually done”,unscrupulous elements will cut timber and transit the same as therewill be no supervisory control of the officials of the forestdepartment.4. Aforesaid submission has been refuted by learned counsel forthe State. It was submitted that number of timbers were not earlier https://hcservices.ecourts.gov.in/hcservices/ included within the meaning of timber under sub-rule (3) of Rule 1.For example, “silver oak” was not included as it was under exemption.Subsequently, the exemptions that were granted with regard to “silveroak” was withdrawn by amendment made vide G.O. Ms. No.45 dated 3rdMarch, 2003. Similarly, the timber not grown in India was earlierexempted from the purview of the rules, which was later on includedand, now, stands excluded in view of the amended rule. Similarly'all swan timber' where the smallest dimension is less than 5 cm inthickness and does not exceed 12 decimetres in length were exemptedfrom the purview of the Transit Rules, 1968.Reliance was placed on paras-6 to 13 of the counter affidavit,wherein the following reasons have been shown for making amendment insub-rule (3) of Rule 1:-“6. It is respectfully submitted that in the NationalForest Policy and National Forest Commission Report, itis emphasized that the public should be encouraged forgrowing more number of trees, in their patta land byamending the relevant provisions of law. The Governmentof India have formulated suggestive guidelines for thesimplification of felling and transit regulation oftrees grown on non-forest private lands for achievingthe object of additional tree planting in private lands.Government of India in their letter 8-14/2004-FP dated15.12.2004 have requested the State Governments toconsider the suggested guidelines to increase the paceof the tree plantation in private lands. The Governmentof India have suggested only three to five species, suchas sandalwood, red sanders, rosewood, khair, sal anddeodar in the category of highly restricted treespecies. The Government of India also suggested thatthere would be no regulation in respect of other speciesto encourage the individual to adopt farm/agro/homesteadforestry. In the State of Tamil Nadu, the species, suchas sandalwood, teak, red sanders, black wood, rosewoodare notified as scheduled timber and are well protectedin the forest areas by enforcing the special provisionsunder the Tamil Nadu Forest Act, 1882 and the amendmentsthereon.7. It is respectfully submitted that because of ban onfelling of trees in Forest areas and lesser availabilityof herbs from private lands most of the timberrequirements are met by timber imported into Tamilnadu.By virtue of species variation it can be easilyidentified, whether it is grown in the country or animported one.8. It is respectfully submitted that the forest areasare bifurcated into Beats, Sections, Ranges, Divisionsand Circles. The Forest areas are protected with well- https://hcservices.ecourts.gov.in/hcservices/ knit protection system manned by trained forest officerssuch as Forest Guard and Forest Watchers, Forester,along with the Forest Rangers at field level andsupervisory and administrative control by AssistantConservator of Forests and District Forest Officer withthe intrinsic supervision and guidance of Conservator ofForests and Chief Conservator of Forests at Circle andRegional level, respectively. The said officers arewell experienced with the forest species. They arecapable of identifying the wood either from the forestor from the private land at the first sight itself, byvirtue of their knowledge and experience. Hence, awell-tested forest protection system exists in our Stateto protect the forest areas.9. It is respectfully submitted that according tosection 41 of the Tamil Nadu Forest Act, 1882, whenthere is reason to believe that a Forest offence hasbeen committed in respect of any timber or Forestproduce, such timber or produce, together with alltolls, ropes, chains, boats, vehicles and cattle used incommitting any such offence, may be seized by a ForestOfficer or Police Officer. According to section 53 ofthe said Act, every Forest Officer and Police Officershall prevent and may interfere for the purpose ofpreventing the commission of any forest offence. Inexercise of this provision, the Forest Officers may verywell check any means of transport, when there is areasonable doubt for commission of any offence. Theimpugned order will not take away the powers vested tothe Forest officials to check the vehicles.10. It is respectfully submitted that in addition tothe regular forest officers, there are special squadssuch as Forest Protection Squad and Flying Squad, headedby Officers along with supporting staff. The saidsquads conduct frequent raids and perambulation of theforest areas. There are 110 check posts in the forestand in other areas to prevent/regulate movement oftimber and other forest produce. In the case ofnecessity, special teams are also formed for conductingraids and perambulation for augmenting protection andmanagement of forests. Cell phones, wirelessequipments, motor vehicles, arms and ammunition areprovided to the forest officers. Hence, the forestareas are protected in a systematic and scientificmanner. 11. It is respectfully submitted that the Tamil NaduTimber Transit Rules, 1968 is only a regulation formovement of timber. This rule will not regulate the https://hcservices.ecourts.gov.in/hcservices/ felling of trees in private lands. Hence, exemptionunder Tamil Nadu Timber Transit Rules, 1968, will nothave any effect on felling of trees in private lands.The farmers and other forums very often represent thatthey are facing undue delay in getting Form II permit totransport their timber for their genuine domestic use.The exemption from the purview of Tamil Nadu TimberTransit Rules, 1968, will not take away the powers ofthe Forest Officers from booking offence for felling oftrees in the Forest areas, even if the timber is foundin sawn size.12. It is respectfully submitted that the Tamil NaduForest Act, 1882, and Wild Life (Protection) Act, 1972are well enforced by the Forest Officers for theprotection and management of forests. Even trespassinto the forest area is an offence under the provisionof the said Acts. Felling of trees are punishable uptofive years imprisonment and fine upto Rs.20,000/-.Hence, there are sufficient provisions of law to preventfelling of trees in forest areas. The impugned orderwill not in any way result in indiscriminate felling oftrees in forest areas.13. It is respectfully submitted that this writpetition has been filed by the Tamil Nadu Forest StaffAssociation under the guise of interest of protectingthe Forest and Forest produces and environment. TheForest officers are appointed to protect and manage theforests. The primary duties and responsibilities of theForest Officers lie within the Forest area. The Forestofficers in this petition are justifying protecting theForest by standing on the road side. The regulationoutside the Forest area shall be minimal withoutharassment to the public. Regulations should not alsoact as a bane, i.e., discouraging the public fromgrowing trees. Number of representations have beenreceived from the public regarding the difficulties ingetting transit permit from the Forest officials and itis considered as an hindrance to growing trees onprivate lands. The impugned order is one of the policydecisions taken by this welfare State to alleviate suchdifficulties and harassment to the public. By virtue ofthis petition, some of the Forest officials desire toperpetuate the licence for reasons other thanprotection of forests in its real sense.”5. We have heard the learned counsel appearing on behalf of theparties and perused the records. It will be evident from the TransitRules, 1968 that timber not grown in India was excluded whilenotification dated 23rd Feb., 1968 was published. Subsequently, it https://hcservices.ecourts.gov.in/hcservices/ was included and now again excluded. Similarly, many other timberswere excluded from the purview of the rule.6. The Tamil Nadu Forest Act, 1882 has been enacted with theobject to conserve the forests of the country and also to regulatethe extraction of forest produce on scientific lines. U/s 35, theState Government has been empowered to make rules to regulate thetransit of all timbers or certain class of timber within the locallimits. The extraction of forest produce being regulated, while insome cases prohibition has been made. In case of some exemptedtimber there is no such prohibition for movement of timber from oneplace to another place. It is the State Government, which isempowered to decide which class of timber to be exempted from theTransit Rules, 1968 and it is not for the Court to decide the same.It is only if it is shown that public interest will suffer, the Courtmay interfere with the law. Further, if the rule is shown to bearbitrary, the Court can interfere with the rule, if violative ofArticle 14 of the Constitution of India.7. So far as timbers not grown in India is concerned, as theyare not grown in the country and the trees are not fell in thecountry, it is open to the State to exempt such timber, as wasoriginally exempted under the rule when rule was framed in 1968.Similarly, if any timber is found to have been cut up for beingfashioned otherwise than is usually done, the State is empowered todecide whether for such timber permit is required for transit or itcan be exempted.8. Learned counsel for the State submits that there will besupervision with regard to all the timbers. Merely on the groundthat a timber is grown outside India, i.e., timber not grown inIndia, or timber cut up for being fashioned otherwise than isusually done or permitted to be done, no person can transit timberfrom one place to another place. It is always open to the officersof the forest department to ask to produce relevant document insupport of such claim. In absence of such document it cannot beaccepted that a particular timber was not grown in India, nor it canbe presumed that such timber was cut up for being fashionedotherwise than is usually done. In case of any violation, no personcan take advantage of the exemption clause and regulatory measureshave to be taken under the Transit Rules, 1968.9. In view of such specific stand taken on behalf of the Stateand as we find no infirmity in the impugned amendment made vide G.O.Ms. No.239 dated 12th Aug., 1998, no interference is called for withthe said rule. However, the respondents are to ensure that no timberis transited in violation of the rules under the caption 'timber not https://hcservices.ecourts.gov.in/hcservices/ grown in India' or 'timber cut up for being fashioned otherwise thanis usually done or permitted to be done before removal from theforest, in which it has been felled'. If necessary, properguidelines may be issued and instructions be forwarded to theconcerned officers of the State.The writ petition stands disposed of with the aforesaidobservations. But there shall be no order as to costs. TheMiscellaneous Petitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar MF/GLNTo1. The Secretary to Government State of Tamil Nadu Environment and Forest Department Fort St. George, Chennai 9.2. The Principal Chief Conservator of Forest Panagal Maligai, Saidapet Chennai 600 015. + 1 cc to the Spl. Govt., Pleader (Forests) SR 59779W.P. NO. 36235 OF 2007LA (CO)RH (9.12.09)